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Intercept
Definitions ECPA Intercept is As the Ninth Circuit stated in Konop v. Hawaiian Airlines, Inc.''302 F.3d 868, 876 (9th Cir. 2002) (full-text) (citations omitted): Application to electronic communications The  ECPA  broadly  bars  all  intentional  interception  of  electronic  communications.18 U.S.C. §2511(1).  The  Act  enumerates several  exceptions  to  this  prohibition.Id. §2511(2). # Law  enforcement  officers  are  authorized  to  conduct  interceptions  pursuant  to  a  court  order.  # For  ISPs  and  other  service  providers,  there  are  three  exceptions .  ::* “necessary  incident”  exception''Id.'' §2511(2)(a)(i) ("It  shall  not  be  unlawful  under  this  chapter  for  an  .  .  .  electronic  communication  service,  whose  facilities  are  used  in  the  transmission  of  an  .  .  .  electronic  communication,  to  intercept,  disclose,  or  use  that  communication  in  the  normal  course  of  his  employment  while  engaged  in  any  activity  which  is  a  necessary  incident  to  the  rendition  of  his  service  or  to  the  protection  of  the  rights  or  property  of  the  provider  of  that  service.”). ::*  "consent  exception"Id. §2511(2)(d): “It shall not be unlawful under this chapter for a person not acting under color of law to intercept an . . . electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception . . . .” and ::*  “business  use”  exception. ''Id.'' §2510(5) ("any  device  or  apparatus  which  can  be  used  to  intercept  an  .  .  .  electronic  communication  other  than — (a)  any  telephone  or  telegraph  instrument,  equipment  or  facility,  or  any  component  thereof  .  .  .  (ii)  being  used  by  a  provider  of  .  .  .  electronic  communication  service  in  the  ordinary  course  of  its  business .  .  .  .”). Category:Legislation-U.S.-Federal Category:Legislation Category:Legislation-U.S.-Criminal Category:Privacy Category:E-mail Application to keylogger software By interpreting the term “intercept” narrowly, the courts have essentially made it impossible to apply the ECPA to keylogger software. As stated in United States v. Steiger''318 F.3d 1039, 1050 (11th Cir.) (full-text), ''cert. denied, 538 U.S. 1051 (2003).: To avoid any possible implication of the ECPA, when the FBI in ''United States v. Scarfo,''180 F.Supp.2d 572 (S.D.N.Y. 2001) (full-text). installed a keystroke logging device on the computer of suspected bookie, it configured the software to cease operations if the modem was being used, thus, preventing interception of messages being transmitted over an interstate computer system. The court said the keylogger software did not violate the ECPA because of its cessation when the modem was being used. In ''United States v. Ropp,''347 F.Supp.2d 831 (C.D. Cal. 2004) (full-text). the court held that the interception of keystroke transmissions from the wire connecting the keyboard to the CPU was not an “electronic communications” under the ECPA, since it occurred before the transmission reached the interstate computer network. The court deemed relevant the fact that the keystrokes of an email are temporarily stored in the computer until the messages is completed; then and only then is the messages transmitted over the network as a complete message. Intercepting the individual keystrokes before they are contained in a completed email message do not fall within the ECPA. Finally, in ''O’Brien v. O’Brien,''899 So.2d 1133 (Fla. App. 5th Dist. 2005) (full-text). a wife used spyware to see if her husband was cheating on her. The software “secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed [[spyware]] to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer.” Applying a Florida state statute, which was pattered after the ECPA, the court held that there was an illegal wiretap “because the particular facts and circumstances . . . reveal that the electronic communications were intercepted contemporaneously with transmission.” Taking regularly spaced “snapshots” of screens makes it unlikely that this conclusion is actually true. References See also * Eavesdropping * Interception * Wiretapping Category:Legislation-U.S.-Federal Category:Legislation Category:Legislation-U.S.-Criminal Category:Privacy Category:E-mail